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Florida Waiver Ruling Reinforces Substance Over Form

First published by Law360, January 29, 2018

By Tirzah Lollar and Kristen Eddy

In December 2017, a federal magistrate judge in Florida determined that law firm Morgan Lewis & Bockius LLP had waived work-product protection over witness interview notes and memoranda compiled during an internal investigation of its publicly traded client, General Cable Corp., by “orally download[ing]” such materials to the U.S. Securities and Exchange Commission. Finding waiver, the court required Morgan Lewis to produce the materials to two former GCC executives charged by the SEC in early 2017 with financial fraud.

It declined, however, to require the firm to produce interview notes and memoranda that had not been orally provided to the SEC, rejecting the former executives’ argument that a “substantial need” entitled them to such materials. The order reinforces the serious implications that disclosure — even oral disclosure — to third parties, particularly government regulators, can have on work-product protection in the context of government and internal investigations. Read the entire article here.

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